Child Relocation 2024 Comparisons

Introduction

The United Arab Emirates is a federal state consisting of seven emirates: Abu Dhabi, Dubai, Sharjah, Ajman, Umm Al Quwain and Ras Al Khaimah, which are located on the bank of the Arabian Gulf, while the seventh emirate, the Emirate of Fujairah, is located on the bank of the Arabian Sea.

There are three laws regarding personal status in the United Arab Emirates. The first is Federal Law No (28) of 2005 on Personal Status, which was promulgated on 19/11/2005, and was subject to the following amendments:

• Federal Decree Law No 8 dated 29 August 2019;
• Federal Decree Law No 5 dated 25 August 2020;
• Federal Decree Law No 29 dated 27 September 2020; and
• Federal Decree Law No 52 of 2023 dated 02 October 2023.

The second is Decree Law No 14 of 2021 (local law in Abu Dhabi only) on Personal Status for Non-Muslim Foreigners, which was promulgated on 3 November 2021 and amended by Decree Law No 15 of 2021.

The third is Federal Decree Law No 41 of 2022 on Civil Personal Status, which was promulgated on 03 October 2022 and entered into force as of 01 February 2023.

The UAE has other laws regarding the protection of child rights such as the following.

• Federal Law No 3 of 2016 on the Child Rights Law (Wadeema).
• Federal Law No 10 of 2019 on the Protection from Domestic Violence Law.
• Federal Law No 24 of 2022 regarding Children of Unknown Parentage.

The UAE does not directly rely on the Islamic Sharia in relation to the personal status matters and the child, but rather the UAE’s Laws are derived from the Principles of Islamic Sharia and Juristic Doctrine as stated in Article (2/3) of Federal Law on Personal Status. As for the rights of the child and disputes between parents or third parties regarding the child, all relevant laws always give the judge the discretionary authority to rule for the best interest of the child.

The courts in the UAE are divided into two categories, namely, local courts and federal courts. The local courts are located in the emirates of Abu Dhabi, Dubai, and Ras Al Khaimah, while the federal courts are located in the emirates of Sharjah, Ajman, Umm Al Quwain, and Fujairah. The crucial question that everyone should ask is “what is the difference between local courts and federal courts?”.

There are many differences, but the most important for the parties to the claim is that in any local court where the litigant files their claim, the three stages (first instance, appeal, and cassation) take place in the same emirate. As for the federal courts, claims begin in the federal court, but they end in the Supreme Court in the capital of the Federation in Abu Dhabi – ie, when the claim begins, for example, in Sharjah, the first instance and appeal are in Sharjah, and the third and final stage is in Abu Dhabi.

Please note that the federal laws are the governing laws and apply over the entire UAE, however, there are local laws that are promulgated for special conditions of each emirate.

Federal Decree Law No 41 of 2022 on Civil Personal Status is the Law on Personal Status for Non-Muslims in the UAE, while referring to the Federal Law No 28 of 2005 on Personal Status, when necessary, in accordance with Article (18) of the Federal Decree Law No 41 of 2022 on Civil Personal Status.

Parental Responsibility

In the past, there was a division of responsibilities between the parents. Custody was accorded to the mother, who was making daily decisions regarding the child in terms of their preservation, care, and maintenance, and guardianship was accorded to the father, who was making the major decisions, such as looking into the child’s affairs, and disciplining, directing, and educating the child. In the event of a dispute between the parents regarding any matter related to the child, the matter is referred to the court and it is decided according to the child’s best interest. However, after the issuance of Federal Decree Law No 41 of 2022 on Civil Personal Status, the parents became equal in their responsibility towards the child, in terms of all the child’s needs and the decisions that must be taken for the child, and the law made women and men equal in rights and duties, in particular, in matters including: “4. Joint custody – that a woman and a man shall have an equal right to assume joint custody of the minor child until the latter reaches the age of (18) eighteen years, after which the child shall have the freedom of choice”. After the child – whether male or female – reaches the legal age, they shall have the freedom of choice to be with their father or mother, and at this age, the child takes all decisions solely.

It is crucial to know that the parents have full power to make any decision they deem appropriate for the child, before the child reaches the age of 18 years, and if they disagree about any matter related to the children, they must refer the same to the court to decide according to the child’s best interest, as expressly stipulated in Article (10/3 and 10/4) of the said Decree Law, where the said article states: “3. In the case of a dispute between both parents over an issue related to joint custody, either parent shall be entitled to apply to the court in accordance with the relevant form to challenge the position of the other parent ask the court to decide on the matter subject matter of dispute. 4. The court shall have a discretionary power to decide a particular course of action in the best interest of the child under custody, based on the request of either parent after divorce”. Accordingly, the court will decide on the dispute according to the child’s best interest in accordance with the Law of Child Rights in the UAE, namely, the Federal Law No 3 of 2016 on the Child Rights Law.

Joint custody is not permanent, but there are cases where the joint custodian is dismissed as stated in Article (18) of Cabinet Resolution No (122) of 2023 concerning the Executive Regulation of Federal Decree-Law No (41) of 2022 on the Civil Personal Status, which states the following.

• The competent court shall decide on the application to dismiss the father or the mother and give up its right to joint custody, whether temporarily or permanently, in any of the following cases:
1. the risk of the child in custody being exposed to domestic violence or ill-treatment;
2. inadequate living conditions provided by the joint custodian to the child in custody;
3. the joint custodian has behavioural or psychological problems that would harm the child in custody or expose them to danger or negligence;
4. loss or lack of eligibility of the joint custodian;
5. the joint custodian does not perform custodial duties;
6. the joint custodian commits a crime against morals and honour that prevents it from carrying out its duties or poses a threat to the behaviour of the child in custody, provided that its guilt is proven by a final judgment;
7. not devote time to caring for the child in custody and be distracted from caring for the child in custody;
8. the desire of the child in custody, provided that they reach 18 years of age;
9. the custodian’s abuse of drugs, alcohol or any psychotropic substances;
10. health reasons that prevent the joint custodian from carrying out its duties with respect to the child in custody; and
11. any other reasons determined by the competent court and in the interest of the child in custody.

The objective is to protect the child under custody and the child's right, rather than that of the custodian. The conditions and requirements include the following.

• The custodian must be of sound mind, of legal age and major, honest, capable of bringing up, protecting and caring for the child taken in custody, safe from dangerous infectious diseases and any health reasons that prevent the custodian from carrying out their duties with respect to the child in custody, and must not have been convicted of any dishonourable crime before, such as adultery or other related immorality – ie, the custodian must be of good morals; otherwise, the custodian will fail to bring up the child in custody properly and morally, as the responsibility of the custodian is mainly to raise, protect and care for the child taken into custody.
• It is necessary that the child in custody is not exposed to domestic violence or ill-treatment by the custodian, the living conditions provided by the joint custodian to the child in custody shall be adequate, the custodian or joint custodian does not have behavioural or psychological problems that would harm the child in custody or expose them to danger or negligence, the custodian or joint custodian shall not suffer loss or lack of eligibility, the custodian or joint custodian shall perform custodial duties, the custodian or joint custodian has not committed a crime against morals and honour that prevents them from carrying out their duties or poses a threat to the behaviour of the child in custody, provided that their guilt is proven by a final judgment, and the custodian or joint custodian shall devote time to caring for the child in custody and be distracted from caring for the child in custody.

In all cases, the custodian or joint custodian shall not suffer from abuse of drugs, addiction to alcohol or any psychotropic substances. In general, the law is keen that the child in custody be in safe hands in all respects; therefore, the law gives the competent court the authority and power to remove a custodian for any reasons that the court deems to be prejudicing the child’s best interest, as the interest of the child in custody is given priority over all interest. In accordance with Article (59) of the Federal Law No 3 of 2016 on the Child Rights Law, the following is stated.

“Subject to the provisions of the personal status law, the competent court shall, before issuing a judgment on the child custody, request the submission of a detailed report about the social, psychological and health status and the criminal status of the person applying for custody or the person for whom custody will be ordered by the court or the submission of a statement that he did not commit any crime outside the State. The Executive Regulations shall determine the procedures for preparing these report and statement”.

Accordingly, the Custody Committee has recently been formed, which performs this role and prepares a comprehensive report on the situation of the parents applying for custody and hears the statements of the child in custody and anyone who can contribute to understanding the situation well, and then submits its report to the competent court that considers the custody case.

All these conditions must be met so that the child in custody is in safe hands and has a trustworthy custodian who takes care of them, until the child in custody reaches the age of 18, and at that time, the child in custody chooses one of their parents or the custodian whom they deem appropriate to reside with.

Requirements for fathers are the same as those for birth mothers. See 1.2 Requirements for Birth Mothers for further detail.

Requirements for non-genetic parents are the same as those for birth mothers. See 1.2 Requirements for Birth Mothers for further detail.

In addition, it is worth noting that if the custodian is a man, he shall be a mahram (a family member with whom marriage would be considered permanently unlawful) to the child in custody, if the child is a female.

Recently, the laws in the UAE do not require that parents be married in order to establish the child's paternity. Therefore, if the biological parents are identified, they are obliged to care for and raise the child, making them responsible for the child. Thus, marriage is no longer as crucial as it once was.

The authors believe that this is an important step taken by UAE legislation, as the child should not be held accountable for the actions of their biological parents that led to their conception and birth. It is essential and a natural right for the child to have both parents, just like other children. The UAE has adopted this correct approach in the view of the authors. In summary, as long as it is established that these two individuals are the child's biological parents, they bear parental responsibility for the child.

The United Arab Emirates does not recognise same-sex relationships, viewing them as abnormal and completely unaccepted in Emirati society. It is asserted that such relationships do not result in procreation.

According to religious beliefs, whether Judaism, Christianity, Islam, or others, all agree that God created male and female and from them populated the earth with men and women. Thus, the officials in the UAE, represented by the Deputy Prime Minister and Minister of Interior, Sheikh Saif bin Zayed, stated at the World Government Summit in Dubai in 2023 that: “The proper family consists of a male and a female, and both society and the state are united to create a suitable environment for future generations, overcoming future challenges and seizing opportunities in a proper manner, free from all forms of pollution, whether intellectual, moral, or environmental”. Therefore, there is no place for homosexual relationships in the United Arab Emirates.

Article (14/3) of Federal Decree Law No 41 of 2022 concerning Personal Status states that: “3. The Cabinet may, based on the proposal of the Minister of Justice, issue a resolution regulating the procedures and provisions for adoption and surrogate families and its implications”. Thus, the law in the UAE permits adoption, but only for non-Muslims. However, it should be noted that the esteemed Cabinet has not yet issued a decision organising the procedures and provisions of adoption as mandated by the aforementioned article, and the authors, as legal professionals, are still awaiting this.

As for Muslims, some Emirates (Abu Dhabi, Dubai, and Sharjah) have established a system of alternative families for the care of orphans and children of unknown parentage. This is based on Federal Law No 3 of 2016 concerning child rights in UAE, which states that the child who is deprived of his natural family in a permanent or temporary manner shall have the right to alternative care through: “The foster family. 2- Public or private social welfare institutions in case the foster family is not available”.

Additionally, Federal Law No (24) of 2022 concerning children of unknown parentage has been issued. The purpose of this law is to regulate the care and custody of these children by providing all necessary support in health, psychological, social, educational, and recreational aspects. It aims to create and secure living conditions conducive to their natural growth, protect them from abuse, inhumane treatment, or neglect, and ensure their proper social upbringing, all under the supervision of the Ministry of Community Development, which has established criteria for selecting foster families. One of these criteria is that the family must be Muslim citizens residing in the country.

The authors believe that the UAE, as a Muslim country, rejects adoption for Muslims because it contradicts the issue of inheritance according to Islamic jurisprudence.

Under UAE law, neither parent has the right to relocate the child in custody for permanent residence in another country without the consent of the other parent. The judge does not have the authority to grant permission to either parent to move the child in custody from the UAE to another country for the purpose of relocation. Permission is only granted for necessary travel for a temporary period, such as tourism, visits, medical treatment, and similar situations. The principles of the four Supreme Courts in the UAE reflect this and agree on this matter.

This is subject to one exception: if one parent moves to another country for permanent residence and does not return to the UAE, the other parent, who has custody of the child or with whom the child resides, has the right to relocate the child outside the country.

As previously mentioned, relocation without the consent of both parents is not possible. The matter always hinges on the best interest of the child in all related decisions. Therefore, if the parent wishing to relocate can demonstrate that the child’s best interests necessitate it, then the law aligns with the child's interests wherever they lead.

Before 2016, and prior to the issuance of the Child Rights Law (Federal Law No 3 of 2016), the child had no say in this matter and was merely considered a dependent of one parent who had custody. However, following the enactment of this law, Article (59) states: “Subject to the provisions of the personal status law, the competent court shall, before issuing a judgment on the child custody, request the submission of a detailed report about the social, psychological and health status and the criminal status of the person applying for custody or the person for whom custody will be ordered by the court or the submission of a statement that he did not commit any crime outside the State. The Executive Regulations shall determine the procedures for preparing these report and statement”.

After the issuance of a decree to form the custody committee, matters have evolved, and the child now has a say in all matters concerning them, including custody. In the personal status laws of the UAE, a child is considered capable of expressing their opinion starting from the age of seven, according to Article (164/3) of the Personal Status Law. Therefore, the child is listened to, and their opinion is considered for guidance. However, the decisive opinion and determination of their future occurs once they reach the age of 18. Article (4/4) of Federal Law No 41 of 2022 concerning civil personal status states: “4. Joint custody: that a woman and a man shall have an equal right to assume joint custody of the minor child until the latter reaches the age of (18) eighteen years, after which the child shall have the freedom of choice”.

Everything discussed so far in this chapter concerns travel outside the United Arab Emirates. As for travelling within the country – ie, within the cities and emirates of the state, Article (150/2) of the Personal Status Law states: “2. After separation, the mother may move with the child to another place in the state if this transfer does not compromise the child’s upbringing, does not harm the father, and does not impose unusual difficulty or expense on the father in checking the child’s well-being”. Indeed, the court does not currently apply this article due to the short distances between the emirates and cities of the state, after the roads have been paved, expanded, and the speed limits increased. Therefore, residing with the child in any emirate of the state has become permissible and is not a reason to drop custody from the relocating parent.

The relocation of a child in custody, after the separation of their parents, without the consent of the other parent or without the authorisation of the judiciary, is considered illegal. It is not permitted and is regarded as a violation of the legal boundaries established by law. Any parent wishing to travel with the child must obtain the consent of the other parent. In case of refusal, the parent wishing to travel with the child must seek authorisation from the judge to grant the travel permit, to avoid committing an illegal act.

Unfortunately, the United Arab Emirates is not a signatory to the Hague Convention dated 25 October 1980, on the Civil Aspects of International Child Abduction; at least not yet. As lawyers, the authors exert tremendous efforts within the country to encourage the authorities to sign this important convention. Since the United Arab Emirates is not among the countries that have signed the convention, if the child is abducted, taken out of the country, or travelled with before the other parent takes action to prevent the child”s travel, it becomes very difficult to return the child to the country. To the knowledge of the author, no child has been returned to the state after being taken out of it.

The United Arab Emirates is not a signatory to the 1980 Hague Convention.

When a child is removed to the United Arab Emirates from a foreign country, where there is a judgment, it is necessary to review the bilateral agreements signed between the two countries – ie, the UAE and the country from which the child was brought. If there is a bilateral agreement for the enforcement of judicial judgments between the two countries, then the entitled party must present and enforce that judgment. Upon receiving the child from the abductor, they should transport the child to their country. If the child is under a travel ban, the parent who asked for the child’s return has to request the court to cancel the travel ban. This procedure (enforcement of the judgment and cancelling the travel ban) should not take more than a maximum of one month.

If there is an agreement between the parties, the abductor would have violated the signed agreement between them, and the court will correct this situation by obliging the abductor to immediately hand over the child and return them to their country.

The cost of such a procedure does not exceed modest amounts, ranging from USD150 to USD200 at most.

The identity of the country is not directly relevant to this matter; rather, the presence or absence of a bilateral agreement between the two countries is what is important.

Conclusion

At the beginning of this research or article, we explicitly stated that the law of the United Arab Emirates promotes joint custody, being an equal and shared right for both the father and the mother. Article (10/1) of the law states: “1. Custody of children is a joint and equal right for both the father and the mother after divorce. It is also a right for the children not to be exclusively raised or seen by one parent over the other, to maintain the psychological well-being of the child and reduce the impact of divorce on the children”.

If this is legally established, anyone who fails to hand over the child to the rightful parent will be punished by imprisonment or a fine, according to the UAE Penal Code, where Article (379) states: “Anyone who is responsible for a child and is requested by the rightful person to hand over the child pursuant to a final decision or judgment from the judiciary and refuses to do so shall be punished by imprisonment or a fine”, and Article (380) further states: “Any parent or grandparent who kidnaps their minor child or grandchild, either personally or through others, even without deceit or coercion, or refuses to return or hand over the child to the rightful custodian as per a final decision or judgment from the judiciary, shall be punished by imprisonment or a fine”.)

According to these two articles, anyone who kidnaps a child from either parent or grandparents exposes themselves to legal punishment. Additionally, other measures will be taken against them, such as not allowing them to see the child alone, specifying a supervised location for visits by the mother or a neutral party, and potentially losing custody altogether.

Important Note

Anyone dealing with personal status law in the UAE, whether it be the Personal Status Law or the Civil Personal Status Law, both of which have been detailed above, must understand that both laws, in their first Article, permit the parties to choose their applicable law. Article (1) of Federal Law No (28) of 2005 concerning Personal Status states: “The provisions of this law shall apply to the citizens of the United Arab Emirates unless non-Muslims have special provisions pertaining to their sect and doctrine. The provisions of this law shall also apply to non-citizens unless they insist on applying the law of their home country, provided that it does not conflict with the provisions of Articles 12, 13, 14, 15, 16, 17, 27, and 28 of the Civil Transactions Law issued by Federal Law No. (5) of 1985 and its amendments”.

Additionally, Article (1/1 and 2) of Federal Decree Law No (41) of 2022 concerning Civil Personal Status states:

“1. The provisions of this decree-law shall apply to non-Muslims who are citizens of the United Arab Emirates, and to non-Muslim foreigners residing in the country unless they insist on applying their law concerning matters of marriage, divorce, inheritance, wills, and proof of lineage, without prejudice to the provisions of Articles (12), (13), (15), (16), and (17) of Federal Law No (5) of 1985 referred to above.

2. The persons addressed by the provisions of this decree-law mentioned in clause (1) of this article may agree to apply other legislations regulating family or personal status matters in force in the state instead of applying the provisions of this decree-law”.

If the parties wish to apply their law, they must do the following:

• provide their law (the code);
• have it certified by the official authorities;
• translate it into Arabic (so far); and
• obtain a letter from their embassy or consulate certifying that the law to be applied is the applicable law in their home country or the country where they were married, as per their situation.